Is the president a rubber stamp? – A Constitutional Connundrum

August 24, 2010

(To increase the font on this interview piece – please hold down the Ctrl key and keep pressing +)

Q: Dotty, how true is to say that the powers of clemency has been hijacked by the cabinet?

A: Not true at all. This is a misrepresentation of fact. This whole debate turns on ONLY ONE CONSIDERATION. AND IT IS THIS.

Q:IS THE PRESIDENT EMPOWERED UNDER THE CONSTITUTION OR ANY OTHER LEGAL INSTRUMENT TO GRANT A PARDON?

To date that question has been answered in the negative in academia and most recently by the courts.

So returning to your question Harphy Boy –  how is it even possible to wrest “power,” that doesn’t exist from the president and give it to the cabinet?

Q: Let me quote this to you. Mr Ravi says the president seems to be the person “directing.” the whole clemency process – and he even claims if the idea of “power,” is not vested in the personage of the president – then how can you explain the whole idea of presidential clemency powers?” How would you respond to that?

A: I believe that in the previous series. I have already responded to that question by highlighting the difference between perceived and actual power.

Let me put it this way. You may if you like Harphoon write a letter to Mr Sherlock Holmes who resides in No.10 Baker Street in London. Since all the evidence based on the reading of the Hounds of Baskerville and your dubious friendship with Darkness has probably led you to perceive that such a famous detective resides there. But the question still stands, does Sherlock Holmes actually reside there?

In the same way, we can argue till the cows come home whether this or that points to certain perceived powers that the President may or may not have – but whether those powers actually exist turns on constitutional considerations – as I have explained in my earlier interviews: both history and convention plays a preponderant role in shaping many of the constitutional set pieces that we see today in the executive, legislature, judiciary and also the office of the President.

Q: I am sorry for cutting in, but I need to be clear….can you please explain something very simple to me, if the idea of power is not vested in the president – then how can you explain the whole idea of presidential clemency powers?

A: I do not think it pays to immerse ourselves into the meaning of what is meant by powers within the context of presidential clemency powers. Anymore than it makes sense to ask why is there no prerogative in the royal prerogative? And why do millions of bureaucrats in the British Isle and the Commonwealth keep on insisting they are hold office in Her Majesty’s Service? What does this sobriquet term actually mean?

That is why I keep stressing the need to return back to historical context whenever we talk about the powers of the President.

And the reason why I don’t wish to go into that debate is because it is slightly only better than a confidence game, where we are merely attempting to capitalize on some historical grey areas to elude the constitutional core through disingenuous means – by deliberately embellishing, exaggerating and rendering ambiguous the powers of the president – if one really wishes to make a case out of the flimsy grounds of semantics and how words are regularly structured etc. Then we could just as well go around in circles.

You could I guess take issue with the whole idea of why even today the official head of state in the UK and Common wealth is still the Queen – though she lacks the power to foreclose on her superior position. And how might the whole idea of prerogative powers be subservient to the whole idea of executive power?

My point is if you want to premise an constitutional debate on the structural propriety of words and what they might mean; then you cannot do this successfully by trying to interpret words and meaning literally. If you do that then you will not go very far. If the goal is accuracy, then you would have to frame those words and sentences alongside historical artefacts and on-goings.

Lawyers call this the golden rule  – and a good example is the Internal Security Act; when one reads it today – it sounds very draconian, something that would probably come out from the Brotherhood in one of their land grabs. But when one considers it was a urgent response to what many law enforcement agencies at the time considered to be a clear and present threat e.g the Communist Insurgency. Then many of the provisions begins to make sense and even acquire a sense of perspective. My point is there is always a need to frame the word, phrase or sentence in a historical context.

The same rationale applies when you read the term – Presidential clemency powers.

Q: Mr Ravi says the cabinet should not be the final decision makers of the clemency process as since they are preoccupied with matters of policy, then will not be able to decide on issues of mercy. There is also the issue here that since the cabinet is the legislature, there is a conflict of interest. And they should not be the judge in this case. How would you respond to what Mr Ravi has said?

A: Mr Ravi misleads again. First of all –  is there a conflict of interest when the cabinet decides on clemency briefs? – No. As what Ravi failed to inform you is the cabinet is still ultimately accountable for whatever decision it makes to Parliament – and here you need to understand –  the cabinet is not Parliament. The cabinet is a subset of Parliament.

Q: But Dotty isn’t Ravi right to say the President is a better person to decide on clemency matters than the cabinet?

A: Mr Ravi misleads again. The problem with the idea of resorting to the President as a form of checks and balances is that it does not truly address what it purports to solve. It promises to solve a problem, but creates a bigger one – as what it does is put all these powers in the hands of the President, who is basically a figure head. And so that raises the question: is he the best person to make an informed decision concerning clemency? If you take the argument further; you could even suggest that we revive the whole idea of rule by kings, queens, hereditary peerage etc – where would we be then?

Then Harphoon Boy, you need to ask yourself the question why did we even bother in the first place clipping the powers of the monarchy?

Q: Andrew Loh claimed that the position of the misuse of drug act currently doesn’t make sense. He claims that he has read press articles of people writing to the ex- presidents and it all doesn’t make sense…

A: I don’t wish to be rude, but I don’t think it pays for me to comment on what others may choose to think about their objects of interest. Besides I have no idea who is Mr Loh.

What I will say is this. Many watching these events will probably deduce that what Mr Ravi has to say makes sense – in some way or another. And that remains a problem, as go a little wrong is law is to go so very wrong, I am afraid –  so my point is when one is confused, disorientated and overwhelmed by new facts and information – return back to the start point and ask the question: does the President have the power to grant a clemency under the constitution?

As I said earlier this entire debate turns on only this one question.

Q: So what you are saying Dotty is we should not go further unless; we first answer this question?

A: Yes Harphy Boy, because if you think long and hard about it – it is like what Darkness always says – “there is no point talking about roof tiles when you have not even laid the capstone yet.” In the same way. If this one question is not prioritize and answered exhaustively. Then subsequent discussions will only serve to confuse.

Look  Harphy Boy, no one is saying for one moment new elements cannot be introduced into this debate concerning the MDP. Along with probably reshuffling set pieces that have become familiar in the death penalty debate – all these things can be done – plausible departures from the conventional model can even be considered. Along with maybe flight of fancies into even other possibilities – but all these things can only be accomplished if one keeps scrupulously close to the evidence by not distorting the law. The problem as I see it is how are we to get at the truth, if the method used instead resorts to omitting, bending, exaggerating, inventing and embellishing the law when necessary just so as to produce a story that satisfy certain needs?

I don’t think this will serve anyone least of all the accused and his family.

End

The Brotherhood Press – this interview was conducted between Harphoon and Missy Dotty and first published in Ekunaba and Phi Beta Kappa in response to the following developments here:

http://www.youtube.com/watch?v=1i4qDlnuoqo&feature=player_embedded

————————————————————————————————————-

“When I first read law in London. The first thing that struck me was it’s clarity. When I returned to practice the law. The first thing that struck me was how vague it was towards some things; for instance, although arguments about the role of mercy and merciful judgments abound.

They could never seem to show themselves in the law. This was strange to me, so very odd that one day I began to speak to these matters to my confidant Darkness.

I asked him why was it mercy as an idea flourished in religion, fiction, philosophy, and poetry, to say nothing of the conversations of daily life among parents, children, educators and those who regular use them like hammer and sickles. As common as these arguments are in daily life – where might they be? What might they mean? Does mercy transform judgment and the law? Or might it be the other way around? Can literature deepen our understanding of the legal role and how it might give life to the idea of mercy?

I asked these questions and much more from Darkness, but yet he had no answers….this worried me.

As I realized then the law was much more than something that allows me to buy pretty dresses and nice shoes.”

Missy Dotty extract of a conversation in a secured thread in Ekunaba in the year 2007 – captured by an auto-bot crawler built and operated by the Interspacing Mercantile Guild – This series has been brought to you by the Brotherhood Press 2010.

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